Docket: T-1035-14
Citation: 2015 FC 1065
Ottawa, Ontario,
September 10, 2015
PRESENT: The Honourable Mr. Justice Manson
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BETWEEN:
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STERLING CLYDE
FOSTER
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA AND FEDERATION OF NEWFOUNDLAND INDIANS
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Respondents
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the November 6, 2013 decision of the Enrolment Committee established by the
Agreement for the Recognition of the Qalipu Mi’kmaq Band [EC Agreement] to deny
the Applicant’s application for enrolment for invalidity.
I.
Background
[2]
In 1949, Newfoundland joined confederation with
no provision made in the Terms of Union for the recognition of Aboriginal
peoples of the province.
[3]
In 1972, the Federation of Newfoundland Indians
[FNI] was formed to seek recognition of the Mi’kmaq people in Newfoundland and
Labrador.
[4]
Following failed negotiations, and an action
being filed against the Federal government, further negotiations were conducted
for the creation of a band of Mi’kmaq peoples, which led to the signing of the EC
Agreement on June 23, 2008.
[5]
The EC Agreement established the Enrolment
Committee to review and evaluate applications for membership based on the
criteria established in section 4.1. Enrolment was to proceed in two phases:
phase one beginning November 30, 2008, to continue for twelve months and
resulting in the first list of Founding Members; phase two was to begin
immediately after the first and continue for thirty-six months (until November
30, 2012), and establish a second Founding Members list.
[6]
The Qalipu Mi’kmaq First Nation was created by
an Order in Council on September 22, 2011.
[7]
Pursuant to the EC Agreement, the Founding
Members lists were to be forwarded to the Registrar responsible for the
Registry under the Indian Act, RSC 1985, c I-5, whereupon the Minister
of Indian Affairs and Northern Development was required to recommend an Order
in Council to be issued establishing those listed as a body comprising a Band
of Indians under the Indian Act, as well as register them as Indians.
[8]
Individuals were encouraged to research their
ancestry and heritage and apply for Band membership. Community assistants and
enrolment clerks were made available to help some applicants with their
applications. Guidelines and checklists were produced for applicants, and hard
copies of the applications were made available to help them in the process.
[9]
Given the high volume of applications the
Enrolment Committee was unable to evaluate them all within the prescribed time
periods in the EC Agreement. A supplemental agreement [the Supplemental
Agreement] was signed, without consultation of the applicants, by the Federal
Government and the FNI, and announced on July 4, 2013. It made a number of
retroactive changes to the EC Agreement. Of particular note is that applicants
were no longer able to appeal certain decisions of the Enrolment Committee, and
that all applications for membership except those previously rejected would be
evaluated under the revised criteria in the Supplemental Agreement.
[10]
The Federation of Newfoundland Indians is a
not-for-profit corporation that represents affiliated Mi’kmaq bands on the
island of Newfoundland. Through membership in those affiliated bands,
individuals become FNI members. There is also a General Membership List that
individuals can apply to be placed on (since 2003).
[11]
The FNI’s mandate has been to have the Federal
Government to recognize the eligibility of the Mi’kmaq on the island of
Newfoundland as registrable under the Indian Act.
[12]
Over the course of years of negotiation and the
commencement and discontinuance of Court action, the EC Agreement was signed, creating
a landless band.
[13]
The Applicant has always identified as having
Mi’kmaq heritage and ancestry. He asserts that he has “practiced
a Mi’kmaq way of life” and identifies as a member of the Mi’kmaq Group
of Indians and “maintains a current and substantial
connection” to them.
[14]
The Applicant submitted his application for
membership in the Band as a part of a family Application before the second
phase deadline of November 30, 2012. It is signed and dated November 13, 2012.
[15]
The Applicant travelled to Grand Falls,
Newfoundland in order to get assistance from Nellie Power, who was either hired
to assist applicants complete their applications or volunteered to do so, to
complete his application. At the time of his trip he had already applied for
his long form birth certificate, a requirement for the application, but had not
yet received it. Ms. Power noted this by hand in his application on a note
stating “Sterling applied for long form birth
certificate three weeks ago hasn’t received it yet”.
[16]
The Applicant’s long form birth certificate was
issued on November 30, 2012, and he believes he received it in early December
of 2012. Upon receiving it, he brought it to his brother who faxed it to Ms.
Power. No confirmation page of the fax was printed and no one contacted Ms.
Power to confirm its receipt.
[17]
The Applicant did not receive any communication
from the Federal Government, the FNI, the Qalipu Mi’kmaq Chief and Council, or
the Enrolment Committee until November 6, 2013, when he received the Committee’s
letter rejecting his application.
[18]
Upon receiving the decision the Applicant called
the 1-800 number on the letter to enquire about his options but was informed
that he could not appeal the decision, could not submit any additional
documentation or information, and that his application would not be considered
further.
[19]
There was a public service notice published on
Canada’s web-site and Qalipu Mi’kmaq First Nation’s web-site, as well as in
newspapers distributed in Newfoundland providing applicants until September 3,
2013 to submit their long-form birth certificates if they had been ordered from
the Government of Newfoundland and Labrador before November 30, 2012. The
Applicant and his brother could not recall if they had seen the notice in its
various forms.
[20]
The Enrolment Committee determined that the
Applicant’s application was invalid because of his failure to produce a long
form birth certificate, evidencing its request prior to November 30, 2012, by
September 3, 2013.
II.
Issues
[21]
The issues are:
- Does the Federal
Court have jurisdiction to review the impugned decision?
- Was the
Applicant provided adequate procedural fairness?
- Were there
obligations owed to the Applicant arising from fiduciary duty or the
honour of the Crown?
- Was the Enrolment
Committee’s decision unreasonable?
III.
Standard of Review
[22]
The appropriate standard of review for
determining jurisdiction and procedural fairness is correctness (Dunsmuir v
New Brunswick, 2008 SCC 9 at para 79). In determining the level of
procedural fairness to be given to the Applicant, the Court will consider the
factors set out in Baker v Canada (Citizenship and Immigration), [1999]
2 SCR 817 at paras 23-27; as set out below in the analysis.
[23]
Answers to the questions of mixed fact and law
made by the EC should be reviewed on the standard of reasonableness.
IV.
Analysis
A.
Is the Enrolment Committee’s decision subject to
judicial review by the Federal Court?
[24]
The Applicant and Respondent Attorney General do
not challenge the jurisdiction of the Federal Court in this matter, albeit for
different reasons. The FIN does challenge this Court’s jurisdiction, on the
basis that the Enrolment Committee’s power stems from the EC Agreement and “not pursuant to federal legislation or from an order made
pursuant to a prerogative power of the Crown”, thus rendering it “not a federal board, commission or tribunal”.
[25]
While the Enrolment Committee is an independent
body created by the EC Agreement, contextually the Enrolment Committee’s power
is derived from the process that leads to recognition of individual members of
the Qalipu Mi’kmaq First Nation by the Governor-in-Council [GIC], under the Indian
Act and Qalipu Mi’kmaq First Nation Act – clearly Acts of
Parliament.
[26]
Moreover, in making the Qalipu Mi’kmaq First
Nation Band Order and its Schedule, which identifies individuals who comprise
First Nations’ membership, the GIC has purported to act “pursuant to paragraph (c) of the definition of “band” in
subsection 2(1) of the Indian Act and subsection 73(3) of that Act”
(Qalipu Mi’Kmaq First Nation Band Order, SOR/2011-180).
[27]
Therefore, in purposefully considering the
contextual scheme of the formation of the Enrolment Committee, to recognize
members of the Qalipu Mi’kmaq First Nation under both the Indian Act and
Qalipu Mi’kmaq First Nation Act, I find that this Court has jurisdiction
to consider this judicial review.
B.
Was the Applicant provided adequate procedural
fairness?
[28]
The Enrolment Committee is a public authority
exercising an administrative decision having a significant impact on the
rights, privileges and interests of individuals seeking to be recognized as
members of the Qalipu Mi’kmaq First Nation – procedural fairness is required,
given:
- The decision is a final decision;
- The decision involves a public law actor,
and
- The decision
affects an individual’s rights.
Knight v Indian
Head School Division No 19 (1990), 1 SCR 653 at
para 28.
[29]
The Enrolment Committee’s decision is final, as
it denied the Applicant’s membership, providing no opportunity to submit
additional information or a right of appeal. The decision is also of a public
nature, as the Committee derives its power from the Agreement, which is between
the Federal Government and the FNI. The Enrolment Committee’s power was delegated
to it pursuant to the Crown’s prerogative power to constitute new Bands and
decide on Band membership and Indian status.
[30]
While the quantum of procedural fairness varies
with the circumstances, in considering the relevant factors as outlined in Baker,
above, the decision falls towards the higher end of the spectrum of procedural
fairness: one must consider:
- the nature of the decision being made and
the process followed in making it;
- the nature of the statutory scheme and
terms of the statute under which the body operates;
- the importance of the decision to the
individual;
- the legitimate expectation of the person;
and
- the choices
made by the agency itself.
Baker v Canada
(Citizenship and Immigration), [1992] 2 S.C.R. 817 at
paras 23-27; Canadian Pacific Railway Co v Vancouver (City), 2006 SCC 5.
[31]
The Respondents argue that the Enrolment
Committee was performing a non-adjudicative administrative function when
reviewing applications to determine qualification as a member of the Qalipu
Mi’kmaq First Nation, and as such the Applicant is owed less procedural
protection. The Applicant submits the nature of the decision was judicial,
given that he was required to file an application and provide evidence,
including sworn affidavit evidence, in support of his application, and the
decision was final, affecting his substantive rights.
[32]
In my view, the situation is not one of
adjudication of rights in an adversarial context. However, it is also not a
highly discretionary or policy-based decision, which generally affords less procedural
fairness.
[33]
The nature of the statutory scheme provides
insight into the level of procedural fairness to be afforded to the Applicant.
While the decision is more regulatory and administrative than it is
adjudicative, given the Applicant’s substantive aboriginal rights at stake and
determination of his status as a member of the Qalipu Mi’kmaq Band (factors (a)
and (c) of the Baker decision above), and the fact that the decision is
final, with no right of appeal (factor (b) of Baker), the duty of fairness
weighs in favour of higher procedural protection.
[34]
Moreover, as stated in Baker, at para 28:
The values underlying the duty of procedural
fairness relate to the principle that the individual or individuals affected
should have the opportunity to present their case fully and fairly, and have
decisions affecting their rights, interests, or privileges made using a fair,
impartial, and open process, appropriate to the statutory, institutional, and
social context of the decision.
[35]
The EC Agreement provided that the Enrolment
Committee was allowed to request information if an application were deficient
(section 4.2.9). This contemplates that a certain level of fairness is to be
afforded to administratively deficient applications by providing some form of
notice and opportunity to be heard before a final determination is made. On the
other hand, it was a discretionary and not a mandatory provision. It is
important that the agreement be interpreted in light of building relationships
for the future as much as it is settling longstanding grievances – it is not to
be treated as a commercial contract (Little Salmon/Carmacks First Nation v
Yukon (Director, Agriculture Branch, Department of Energy, Mines &
Resources), 2010 SCC 53 at para 10).
[36]
The Supplemental Agreement mandated that
deficient applications would be found invalid and removed any right of appeal.
However, a determination of an invalid application was “without
prejudice to the ability to submit a new application form properly completed
and signed” (section 8.3). Thus, applicants were given the opportunity
to submit a new application if there had been previous errors.
[37]
The Attorney General rightly points out that the
Enrolment Committee had no discretion to consider applications failing to meet
the minimum requirements, nor were they given discretion to extend the time in
which to submit an application. They were, however, given the discretion to
notify applicants whose applications were incomplete, under section 4.2.9.
[38]
The inclusion of these avenues for recourse in
the EC Agreement and in the Supplemental Agreement, to correct administrative
errors, supports the Applicant’s position that the EC Agreement was intended to
be fair and guard against a situation such as the present one, where an
individual, who may meet all the requisite criteria for obtaining Indian status
and membership in the band, is precluded from doing so due to a technical or
administrative error.
[39]
The Enrolment Committee’s procedure was defined
by the terms of the EC Agreement. As above noted, the EC Agreement gave the
Enrolment Committee discretion to request additional evidence to complete an
assessment of the criteria in section 4.1. The EC Agreement did not require the
Enrolment Committee to notify applicants of deficiencies.
[40]
The more discretion provided to the Enrolment
Committee to determine their rules of procedure, the less procedural fairness
afforded. In the present situation, the Enrolment Committee was not given full
reign to determine their procedure; in fact, they were provided with very
little discretion, other than to notify applicants of deficiencies. This tends
to weigh in favour of higher procedural protection.
[41]
The fact that community assistants and enrolment
clerks were hired by the Enrolment Committee to assist applicants demonstrates
that parties to the EC Agreement contemplated the possibility of technical or
administrative errors or omissions, that such a situation warranted providing
assistance, and to prevent an irregularity in the application process from
necessarily resulting in a loss of band membership. That the Applicant did not
actually seek assistance is not determinative; the fact that assistants were
provided demonstrates that the Enrolment Committee recognized the importance of
the interests at stake.
[42]
In Baker, above, at para 22, Madam
Justice L’Heureux-Dube highlighted the central purpose of participatory rights:
I emphasize that underlying all these
factors is the notion that the purpose of the participatory rights contained
within the duty of procedural fairness is to ensure that administrative
decisions are made using a fair and open procedure, appropriate to the
decision being made and its statutory, institutional, and social context,
with an opportunity for those affected by the decision to put forward their views
and evidence fully and have them considered by the decision-maker [Emphasis
added].
[43]
As the Applicant points out, the list of Baker
factors is not exhaustive (para 28). Although I do not find that the
Applicant was owed a fiduciary duty or that the honour of the Crown is engaged
in these circumstances (for the reasons provided below), the fact that the
Agreement stems from the GIC’s prerogative power to create new bands under the Indian
Act – a higher level of procedural fairness is warranted. At a very minimum,
this requires notice.
[44]
Applicants for membership in the Qalipu Mi’kmaq
First Nation were made aware of the case to meet; through the EC Agreement,
FNI’s Guidelines and the application form. However, the Applicant was provided
no notice of the deficiency in his application and was provided no opportunity
to respond and correct it. A reasonable person, apprised of these facts, would
view the decision as unfair.
[45]
Had Mr. Foster been notified in advance of the
deadline for submitting long-form birth certificates that his had not been
received (as he thought), and that therefore his application was incomplete, he
would have had an opportunity to send his birth certificate directly to the
Enrolment Committee. Consequently, he would have met the requirements of
section 4.1 – which will have enduring and significant substantive consequences
to his status as a band member.
[46]
The lack of notice and thus any form of recourse
for an applicant who has made an honest error in their application, is not
fair. It is not fair considering the statutory, institutional, and especially
the social context of the EC Agreement, the Supplementary Agreement, the
purpose of the Enrolment Committee, and the fact that the Enrolment Committee’s
decision has long-term consequences for the Applicant’s personal identity,
inclusion in his community, the entitlement of his descendants, access to
certain programs and services and constitutionally protected rights.
[47]
As part of the procedural fairness analysis, the
Applicant argues that there was a legitimate expectation that procedurally the
Applicant would be told if his application was incomplete. The test, as set out
in Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC
36 at paras 94-95, is that the practice, conduct or promise said to give rise
to a legitimate expectation must be clear, unambiguous and unqualified and must
not conflict with a statutory duty. That test is not met by the facts of this
case – the EC Agreement provided the Enrolment Committee with the discretion of
requesting information if an application was deficient, which does not
constitute a duty to do so in clear and unambiguous or unqualified terms.
C.
Were the objections on the Crown to the
Applicant arising from a fiduciary duty or the honour of the Crown?
[48]
A fiduciary relationship exists between
Aboriginal peoples and the Crown. However, outside the framework of section 35
of the Constitution Act, 1982, a fiduciary duty requires the
identification of a cognizable Aboriginal interest, and the Crown’s undertaking
of discretionary control in relation thereto in a way that invokes
responsibility “in the nature of a private law duty”.
Here, where no Aboriginal or treaty right is invoked, a fiduciary duty must be
tied to an identified Indian interest, such as reserve lands (Wewaykum
Indian Band v Canada, 2002 SCC 79 at pars 81-85).
[49]
As argued by the Respondent Attorney General,
the Applicant has not identified any cognizable Aboriginal interest on which he
bases his assertion that a fiduciary duty is owed to him. He provides no
evidence regarding the practices, customs and traditions of the specific
Aboriginal collective from which the asserted fiduciary duty arises, or indeed
the basis on which he can claim status or non-status rights.
[50]
I also agree with the Respondent Attorney
General that any fiduciary duty, if owed, would be to the Aboriginal
collective, i.e., the Mi’kmaq Group of Indians of Newfoundland, as
represented in negotiations by the FNI, or its successor by way of the
implementation of the Agreement, the Qalipu Mi’kmaq First Nation. The honour of
the Crown rests with ensuring that the Agreement, as negotiated between the
government of Canada and the Aboriginal collective, was implemented as agreed. In
the same vein, the Crown’s duty to deal honourably with the Aboriginal
collective requires that the Agreement be interpreted and implemented in light
of its purpose and within its social and historical context.
[51]
I find that there was no breach of any fiduciary
duty, which the Applicant failed to prove was owed to him, or any breach of the
honour of the Crown towards the Applicant, given neither was engaged for the
Applicant in the circumstances here.
D.
Was the EC’s decision unreasonable?
[52]
For the same reason that I find that the
decision of the Enrolment Committee was procedurally unfair, I also find that
it was unreasonable: there was no reasonable notice or even attempt at such
notice provided to the Applicant to allow him to correct the deficiency in his
application for recognition as a member of the Qalipu Mi’kmaq First Nation.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The decision of the Enrolment Committee
declaring the Applicant’s application for membership to the Qalipu Mi’kmaq Band
to be invalid is set aside;
2.
The Enrolment Committee shall evaluate the Applicant’s
application and eligibility for membership in the Qalipu Mi’kmaq Band in
accordance with section 4.1 of the Agreement;
3.
Costs to the Applicant.
"Michael D. Manson"
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